Minutes – PVS Excom Meeting – May 26, 2009

The meeting was held at Dottie Villers’ home. Present were Mary Beale, Cara Jablon, Dave Lerner, Sue Lyon, Carolyn Maurer-DeVilbiss, Rosemary Schwartzbard, John Seabold, Ellie Thayer, and Dottie Villers.

The April 28 Excom Minutes were approved as revised.

Treasurer Dick Laeser was travelling out of the country. The Treasurer’s Report will be updated when he returns.

Membership Dave Warthen distributed the May Membership Report electronically to members of Excom. Dave continues to give assistance to TOOT volunteer editors. He is responsible for the electronic distribution of TOOT and provides the necessary computer documents for USPS mailings. He provided an electronic Quarterly Updated PVS Roster to 128 members with PC’s on 5/1/09. President Dottie Villers received an Excel version of the entire PVS database as an offsite backup. One new application for membership has come in (Toni Govier, sponsored by the Strands). Carolyn reminded Excom that the two year membership renewal is approaching (July 1).

Events and Meetings

June 16 - Monthly Meeting: Ilse Keel July 28 - Excom Meeting: Ellie Thayer

June 23 - Excom Meeting: Conference call August 19 - Wolf Trap Picnic: Dottie Villers

July 12? - All Trips Party: Cara &Bob Jablon September 15 - Monthly Meeting: Leonhardts

Excom preferred a conference call meeting on June 23rd because of its convenience. Cara will let Dottie know soon if the July 12th date for the All Trips Party at her home is a go. Dottie said that the program at Wolf Trap on August 19th is billed as a multimedia event. There will be video projections in the background from Glacier National Park, dancing on stage, and live music.

Sail-Trip Status The long awaited Tahiti trip will be departing on May 28th and returning on June 12th.

Ski-Trip Committee Prior to tonight’s meeting Rosemary had distributed a trip proposal submitted by Dick Comerford to Steamboat Springs, Colorado. It would take place in December (12/12-12/18/09). According to the proposal, participants would spend the first night at the Denver Embassy Suites near the Denver Airport. This would allow people time to adjust to the altitude and provide lots of leeway in terms of flight arrival times. The next six nights would be spent at the Ptarmigan Inn (“Steamboat’s coziest ski-in/ski-out lodge”). Estimated trip cost (not including air fare): $890. “Dick is setting it up loosely,” said Rosemary. Some Excom members wondered why participants wouldn’t fly into Hayden Colorado Airport located in Steamboat. “A lot of people will prefer making their own arrangements for travel,” said Rosemary. Dick is also leading the PVS contingent on the BRSC Bormio, Italy trip in March 2010. He has led many trips. Rosemary recommended approval. The vote was unanimously in favor. This brings to four the number of ski trips approved for the ’09-’10 winter ski season.

Dave Lerner said that he would be setting up the Club website’s Trips page in the next few weeks. He encouraged trip leaders to send him brochures (using the word processor of their choice) highlighting details about their trips. Dave will in turn convert the brochures (fliers) into web pages. The BRSC website will have access to these sites as well. When new brochures are written, Dave can replace the earlier editions or add to them.

TOOT Management Dave Warthen is the volunteer editor for the June TOOT. The deadline for entries is May 29th. Marvin Hass has graciously agreed to be editor of the July/August TOOT and the September TOOT. Sue Lyon has offered to oversee the copying and mailing of the June and July/August TOOTs.

Other Business Ads in TOOT: An Applicant Member has asked Dottie if she could put a notice in TOOT advertising that her bike is for sale. Excom discussed the request. There is some precedent in that occasional ski items have been posted for sale in the newsletter. Excom felt that a short ad would be acceptable in part because a bicycle is recreational. Unless requests for ads become more frequent, Excom felt that they could be handled on a “case by case basis”.

PVS and ski trip leader liability: At the April 28th Excom meeting, concerns were raised about the Club’s position should a tour operator default or some other untoward event occur. The discussion was prompted by learning that the Ski Club of Washington DC (SCWDC) had paid $120,000 from its reserves to cover trip expenditures that JTM Tours had failed to meet. Trip participants were notified 36 hours before departure that their hotel rooms (Gant Hotel in Aspen) had not been paid for. Further inquiry disclosed that the airline tickets had not been purchased. Trip participants had paid in full so the fees were essentially paid for twice. Of note was the fact that JTM tours had existed for 27 years. It was considered a “trusted tour operator”.

Ray McKinley said that liability issues had been discussed many times at Excom meetings over the years. He recalled that the Club changed its corporation status from DC to Virginia (finalized 8/30/06) in large part because of the greater protection afforded to Club officers under Virginia law.

Cara and Ellie, both lawyers, offered to review the contracts in the Club’s By-Laws and the Ski Trip guidelines with respect to liability.

Since the April 28th meeting, many emails have been exchanged among Excom members and interested parties on the topics of liability and waivers. In a 4-30-09 email, Dave Lerner pointed wrote “liability waivers do not prevent lawsuits as rights cannot be waived”. Dave has viewed the waiver attached to the club membership renewal forms as overly broad. “A warning for each ski trip is much more appropriate as the risks associated with the trip can be spelled out.”

Traditionally PVS trip leaders have written their own waivers. These appear in small print on the back side of the trip flier. The area for the participant’s signature is on the front side of the flier. An example of a trip waiver (referred to as a “PVS Standard Disclosure”) can be viewed at potomacvalleyskiers.org/Trips/StandardDisclosure.html. The ski trip fliers can be accessed on the Club website (potomacvalleyskiers.org) by clicking on the “Ski Trips” button.

In a 5-4-09 email, Dave Lerner summarized information that was passed on at the May 2nd BRSC spring meeting. With respect to JTM tours, subsequent investigation reportedly showed that corporate registration had been allowed to lapse. In light of this, SCWDC may itself be liable to the IRS for failure to withhold federal taxes on payments to an unregistered US corporation. To prevent similar delinquent situations from occurring in the future, BRSC recommended that clubs obtain credit reports and late payment scores from prospective tour operators. BRSC indicated that it would obtain these reports on behalf of member clubs in the future. Reports should be obtained for both the registered company and the principal owner of the company. Other suggestions mentioned at the meeting included acquiring individual trip insurance, using credit cards to make payments, and requiring performance bonds. All of these bear some expense.

Furthermore clubs were advised to consider contractual changes that would afford greater protection. Inclusion of arbitration agreements, specification of law jurisdiction, requirement of disclosures of payment to third party vendors, and definitions of default by the tour operator and rights of the club to cancel in the event of such a default were all mentioned.

On 5-19 Cara electronically distributed to Excom, D. Lerner, D.Warthen, Charlie Huggins, and Carolyn Maurer-DeVilbiss an in depth, 9 page report on liability issues pertaining to PVS ski trips. The report included a draft for a revised liability clause (waiver) which would provide greater protection to the Club, its officers, trip leaders, and members than the traditional PVS Standard Disclosure form. The report generated many appreciative emails back to Cara.

In a recent email sent to Cara (and subsequently shared with Excom) current Club member John Smith wrote that although there had been discussions at Excom about the legal and liability issues involved in running ski trips in the past, they did not address “the legal and liability issue in the detail that you have addressed”. John went on to say that as it’s currently set up, the ski trip leader is the “solely responsible party” and “has full liability if something goes wrong or there is a dispute with the tour operator”. He characterized the practice of 1) ski trip leaders contracting with tour operators without a PVS officer mentioned or included as a signatory and 2) having the trip participants make payments to a bank account in the trip leader’s name as unique to PVS. He recounted his own experience as a trip leader and co-trip leader between 1998 and 2007. He used four different trip operators. He found it difficult to obtain information about their business status and the information that was obtained was “not very reliable”. Of the four operators, John said that two have gone out of business, one of which was the oldest and largest specializing in ski trips.

On 5-26 Cara electronically distributed to Excom, D.Lerner, D.Warthen, C.Huggins, and C.Maurer-DeVilbiss a shortened summary of the liability waiver issues in preparation for tonight’s meeting.

As Cara prepared to present her summary, Ellie shared what she had learned about the Club’s legal protections as a Virginia corporation. Ellie confirmed that PVS is registered as a not for profit or nonprofit corporation (not an LLC) in Virginia. Provisions of the statute pertaining to the Club limit the liability of the officers and directors (Excom members are considered directors) to the amount of compensation received. In addition “an officer or director who serves such an exempt corporation without compensation for his services shall not be liable for damages in any proceeding”. (PVS officers and Excom receive no reimbursement for their services.)

Cara explained that Virginia does not enforce liability waiver clauses for personal injury where there is negligence (or gross negligence). As such a person who signs a PVS waiver clause can turn around and sue the trip leader, the officers, etc. Virginia does accept the validity of a liability waiver clause for property damage (any monetary loss is considered property damage) where there is negligence. Cara pointed out that although PVS is incorporated in Virginia, a law suit against it could be brought in another state where Virginia law does not apply. She noted that the contract with a tour operator can designate what court a case would be tried in and what law would be applied. Dave Lerner mentioned BRSC’s recommendation to include an arbitration agreement in the contract. Cara pointed out that arbitration can be very expensive.

Carolyn said that she has received a contract that she is expected to sign soon as leader for the Snowmass trip (occurring in January 2010). She is working with Doug Horstman of Encompasse Tours. Dave Lerner suggested doing the screening that BRSC recommended (credit reports, licensure etc.). Carolyn explained that it just wasn’t possible to do in depth screening in the limited amount of time available. Cara and others thought that it would be more beneficial for now to focus on the waiver. The emphasis would be on making it clear to people that if there is a failure of a vendor or tour operator or airline to perform, the waiver signatories would not be reimbursed by the trip leader. Cara offered to review Carolyn’s contract with Encompasse Tours as well as contracts of other trip leaders.

Acknowledging that Cara’s report contains many excellent suggestions, Rosemary and Dottie cautioned against taking it on all at once. Rosemary suggested looking at the language of the revised waiver and seeing if it might be incorporated into the fliers in July.

Cara asked if the Club had considered insurance as protection against defaults. (The Club recommends individual insurance to trip participants). John Seabold said that using the computer, he was able to find a site that offers group travel insurance (Travelinsure.com). The site specifically mentioned coverage if “your tour operator, airline, or cruise line declares bankruptcy”. John went on to say that the main focus for now should be the waiver.

Cara has suggested renaming the liability waiver “Release and Assumption of Risk”. She has recommended that it be written in the same type size as the rest of the trip information and that the area for signature, printed name, and date be on the same page as the waiver. It was further recommended that each waiver include the name of the specific trip for which it is intended. (A generic form could be used for all trips with the trip name added.)

Carolyn reported that she has already sent in a $1000 check as a good faith deposit to Mountain Chalet in Snowmass. She is getting ready to send another $1000 deposit to hold the airline reservations. Cara said that it would be helpful to know the status of those deposits. For example if the trip is canceled, what percent would be refunded.

One other concern Cara had pertained to the responsibility trip leaders had in a medical emergency. Although the duties of trip leaders are nicely presented in the Club’s Ski Trip Guidelines, their role in medical situations is not covered.

Cara asked people to send comments on the revised waiver to her with a copy to Ellie or everyone.

Dottie closed the meeting by saying “We’re on phase one. We’ve brought up some good issues. We’ll get comments back to you. We should be prepared to vote on the new waiver at the next meeting.

Minutes submitted by Mary Beale, secretary